Turkey: Enforcement Of Foreign Judgements 2020

1. Country Finder

1.1       Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply.

2. General Regime

2.1       Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction?

The main legislation that regulates the enforcement and recognition of foreign judgments is the Code on the Private International and Procedural Law numbered 5718 ("PIL").

There are further legislations concerning specific areas.

2.2       What constitutes a 'judgment' capable of recognition and enforcement in your jurisdiction?

A judgment is a decision of the foreign court relating to civil matters and is final in accordance with the laws of that country.

No further right to appeal must be available for the case in the foreign courts.

2.3       What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?

The enforcement and recognition of the foreign judgment and arbitral award could be done by the competent court if:    

a)    The subject of the foreign judgment is binding and final according to the law of the country where the decision was rendered.

b)    The subject matter of the judgment is out of the scope of the Turkish courts' exclusive jurisdiction.

c)    The decision does not contradict the Turkish public order.

As a general rule, the courts examine whether the above preconditions are met ex officio.

2.4       What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment?

A connection to the Turkish courts is not required for the Turkish courts to accept jurisdiction of a foreign judgment.  Therefore, according to Turkish procedural law rules, a party who applies to the court should have an interest to obtain such decision.

Accordingly, even though a connection is not needed, the party that would obtain the recognition and enforcement of the foreign judgment should have an interest on the recognition or need to enforce the foreign judgment within the competence of the Turkish courts. 

2.5       Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?

In the recognition of foreign judgments, a mutual agreement between the two concerned countries is not required.  Whereas, with the enforcement of a foreign judgment, there must be an agreement, a legal provision, or a de facto application between Turkey and the concerned foreign country.

The routes for obtaining judicial recognition and enforcement are very similar.  The recognition of a foreign judgment does not enable it to be enforced in the Turkish courts.  It is merely an acknowledgment that it has the same power as a final judgment of the local courts and provides conclusive evidence and decision.

Once an enforcement of a foreign judgment decision has been obtained before the Turkish courts; it can be executed.

2.6       Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction.

It is possible for a foreign judgment to be recognised and enforced as long as the requirements of PIL are satisfied.

Any real person or legal entity that has a right to enforce a legal action can file a request for the recognition and/or enforcement of the foreign judgment before the Turkish courts. 

A petition is filed at the court and should include the following:

(a)   the full names of all the parties, addresses and details of their legal representatives (if any);

(b)   the name of the court which gave the decision along with the date, number and the summary of the judgment; and

(c)   (even if only) part of a foreign judgment is to be enforced, that particular part must then be stated.

The enforcement petition must include the below which must be apostilled or certified by the Turkish Consulate in the country concerned:

(a)   an approved judgment of the foreign court or the certified copy of the approved judgment along with the authorised translation of the judgment; and

(b)   a letter confirming that it is a final judgment of the foreign court along with the authorised translation of it.

The petition must be served to the defendant along with the date of the hearing.

The claimant must make an application to the court at the domicile place of the defendant.  If the defendant is a legal entity, the case should be filed at the registration place of the headquarters of the legal entity.  If the defendant does not have a residence address in Turkey, the proceeding can be commenced in any district court in Istanbul, Ankara or Izmir.  

Furthermore, a foreign claimant shall be obliged to submit a warranty before the court for obtaining a recognition and/or enforcement judgment.  This amount is determined by the court and may be subject to exemptions due to a mutual agreement between Turkey and the concerned country. 

If the specific regimes are applicable for the enforcement of foreign judgments, these rules must be followed.

2.7       On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made?

The defendant may challenge a foreign judgment on the basis that:

• the foreign judgment is rendered by the court as unrelated to the matter in dispute;
• the foreign judgment has already been wholly or partially executed; or
• there is a ground preventing the enforcement of the foreign judgment.

When a foreign judgment is before the Turkish court for the recognition and/or enforcement, the Turkish court may only review whether the necessary conditions of recognition and/or enforcement of a foreign judgment have been satisfied.  In other words, it is not possible for the Turkish court to review the substance of the foreign judgment; to examine whether or not the foreign judgment has been given in accordance with the applicable jurisdiction.

A case will need to be brought to the court's attention within the time limit permitted by the country giving the judgment.  The defendant can appeal the decision on the basis that the time limit has elapsed.

2.8       What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters?

In some instances, not all foreign judgments are required to be executed in the Turkish courts.  For example, those relating to divorce proceedings, annulment of marriage or denial of a child by the parent only require recognition by the Turkish courts to have a legal effect under Turkish law.

In some instances, for a judgment or an official document to have a legal effect, they must satisfy the requirements of recognition and enforcement in the Turkish courts.  This is applicable to any foreign judgment relating to the adoption of a child.

If a judgment has been given by an international court such as the International Court of Justice under PIL, these judgments cannot be recognised or enforced in the Turkish courts.

2.9       What is your court's approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties?

(a)   As a condition for bringing all kinds of proceedings whether regarding a foreign judgment or not before the Turkish courts; there should not be a previous binding judgment between the parties on the same issue. 

(b)   A foreign judgment cannot be recognised or enforced if there is a local pending proceeding between the parties on the same issue.

2.10      What is your court's approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties?

PIL does not regulate the enforcement of foreign judgments when there is a conflicting local law or prior judgment of the same issue.

However, the existence of a prior judgment or conflicting local law may be a motif for the court on the recognition and/or enforcement of foreign judgments on the basis of public order.

2.11      What is your court's approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country?

One of the preconditions of the recognition and/or enforcement of a foreign judgment is that the subject matter of the judgment is out of the scope of the Turkish courts' exclusive jurisdiction.

Therefore, if the subject matter of the foreign judgment purports the application of Turkish law; the Turkish court would not give a recognition and/or enforcement decision on the judgment.

2.12      Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain.

The law relating to enforcement and recognition of foreign judgments does not vary between different regions in Turkey.

2.13      What is the relevant limitation period to recognise and enforce a foreign judgment?

There is no specific limitation period for the enforcement of foreign judgments under Turkish legislation.  However, according to Article 8 of PIL, the limitation period should be subjected to the applicable law of the legal transaction and/or relation.

3. Special Enforcement Regimes Applicable to Judgments from Certain Countries

3.1       With reference to each of the specific regimes set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be recognised and enforceable under the respective regime?

1. Under Article 31(3) of CMR, a judgment of a contracting country will be recognised by the other Contracting States as soon as the formalities in that country concerned have been complied with.
2. When a judgment has become enforceable under the law applied by the court of the State, the judgment can be enforced in the Turkish courts once the requirements under PIL have been satisfied as provided under Article 12 of the Convention.
3. This Convention will apply to the recognising and enforcing of an arbitral award made in the territory of a State other than Turkey where the recognition and enforcement of such award is sought.
4. Article 19 of The Hague Convention provides that an order for costs and expenses can be rendered enforceable without a hearing in accordance with the Turkish legislation of which enforcement is sought.  This is subject to a subsequent appeal by the losing party.
5. The Washington Convention applies to arbitral awards issued by the International Centre for Settlement of Investment Disputes ("ICSID") for disputes relating to an investment between a signatory State and a national of another signatory State.

3.2       With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?

The New York Convention states that once a foreign judgment has been recognised, it should have the same effect of a local court judgment.  Whereas, the enforcement of a foreign judgment permits it to be executed in the Turkish courts.

3.3       With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment.

1. When a judgment is enforceable in a country giving the decision, it can also be enforceable in a State Party to the Convention as long as the formalities described in part two have been complied with.  It must relate to proceedings out of carriage as provided under the Convention.
   CMR does not permit the merits of the case to be reopened in the country where a judgment is being enforced.
   The judgments applicable under this convention are judgments after trial, judgment by default and settlements confirmed by an order of the court.
2. Pursuant to the provisions of the Convention, once the judgment has been enforced in the State giving the decision, such judgment will be enforceable in the Turkish courts as long as it satisfies the requirements under the domestic law.
3. For a foreign judgment to be recognised and enforced the party applying must supply:
   (a) a duly authenticated original award or a duly certified copy; and
   (b) an original agreement or a duly certified copy.
   If the award or agreement is not in Turkish, the party applying for recognition or enforcement of the award needs to produce a Turkish translation of these documents and this must be certified by an official translator or a diplomatic or consular agent.
4. An order for costs and expenses will be enforceable without a hearing in any other Contracting State; the competent authority in Turkey will examine:
   (a) the law of the country in which the judgment is being rendered (the copy of the judgment must be authentic);
   (b) if the decision has the force of res judicata; and
   (c) the translation is provided, which is certified as correct by a diplomatic officer or a consular agent.
5. Each of the Contracting States will recognise an award rendered pursuant to the Convention as binding and enforceable within its territories as if it was a final judgment of a court in that State.  The party seeking recognition or enforcement of the award needs to provide a copy of the award certified by the Secretary-General.
   For the Washington Convention, no exequatur will be necessary and, therefore, enforcement proceedings according to the procedural law applicable to the member state where the enforcement is made could commence automatically.

3.4       With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the special regime? When can such a challenge be made?

1. Enforcement of a judgment under CMR may be challenged on the basis that it relates to interim judgments or award of damages or cost orders made against a plaintiff who has failed in his action.
2. Enforcement of a judgment under this Convention may be challenged on the grounds that:
   (a) it is provisionally enforceable;
   (b) it relates to award of damages; or
   (c) it is a cost order made against a plaintiff who fails in his action in the State giving the original judgment.
   The merits of the case relating to this Convention cannot be reviewed by the Turkish courts.
3. Recognition and enforcement of foreign arbitral awards under the Convention may be challenged on the grounds that:
   (a) the agreement is not valid;
   (b) a proper notice of arbitral proceedings was not given to the party against whom the award is invoked;
   (c) it falls outside of the arbitration agreement;
   (d) the arbitral procedure is not in accordance with the agreement of the parties or was not in accordance with the law of the country where the arbitration took place;
   (e) the award is not yet binding on the parties, or has been set aside or suspended; or
   (f) the subject matter of the difference is not capable of settlement by arbitration under Turkish law.
4. An order will be challenged under this Convention if it does not relate to orders for costs and expenses.
5. An award can be challenged if the requirements are not fulfilled.

4. Enforcement

4.1       Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor?

There are two main enforcement methods in Turkey: execution proceedings; and bankruptcy proceedings.

An ordinary execution proceeding may be commenced against the debtors in Turkey.  In order to do so, a payment order shall be prepared and served on the debtor via the Bailiff Office.  Once the payment orders are served, the debtor is entitled to object to the payment order within seven days as of the service of the same.  If the debtor fails to object to the payment order within the allowed period of time, the payment order shall become final and binding and any asset of the debtor including the bank accounts, movables and real estates may be seized and sold through auction.  If the debtor raises objection to the payment order, the substantive proceedings shall be commenced for the cancellation of objections which is likely to take approximately 12 months of litigation.

Bankruptcy proceedings only apply to merchants in relation to their unpaid and due debts.  The process is initiated by the creditor making a demand to the Bailiff Office in the debtor's principal place of business as registered at the trade registry.  Once the demand is made, a payment order will be served on the debtor.  If the debtor pays the debt within seven days of receiving the payment order the bankruptcy proceedings will be finalised.

5. Other Matters

5.1       Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description.

There have not been any recent legal developments regarding the recognition and enforcement of foreign judgments.  The relevant legislation, PIL, has been applied for some time now.  This is important for international relations and the recognition of foreign judgments in Turkey.

We are at a period where a lot of disputes or matters between parties have an international element.  Therefore, PIL is important and is a modern legislation which is not in need of urgent reform.

The development in this area is usually dependent on the subject matter of the case.  If there is a total disregard of Turkish law in the country concerned, it would be typical for the Turkish courts to reject such foreign judgment.

5.2       Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction?

The timescale should be taken into consideration.  It is not a quick process and different timescales might be applicable for the enforcement and appeal stages.  The enforcement procedure might take around eight to 12 months and the appeal procedure is likely to take a further six to eight months.

The procedure should be followed carefully as a right to appeal may be available to the party in default in the country giving the decision.

There is no specific treatment to different countries under Turkish law.  For example, it does not matter whether the foreign judgment was given in the English courts or the courts of Panama.

As long as the preconditions and requirements under Turkish law are fully satisfied, the foreign judgment would be recognised and enforced by the Turkish courts.

Due to the variety of regimes available as discussed above, it might be essential that clients who wish to enforce foreign judgments in Turkey consider if any of the regimes would be applicable to determine the procedural route to be taken to enforce a judgment.

Originally published by ICLG on the 8th of April, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.